Gun Violence Protective Orders

Laws enacted in 2014 and 2016 in California and Washington provide loved ones with lifesaving tools that can prevent gun tragedies before they occur. Gun violence protective order laws, also known as gun violence restraining orders and extreme risk protection orders, allow families and household members, as well as law enforcement officers, to petition a court to remove a person’s access to guns if he or she poses an imminent danger to self or others.

Background

On May 23, 2014, Elliot Rodger shot 10 and killed three people in the college town of Isla Vista, California, before turning the gun on himself. Rodger displayed such concerning behavior before the shooting that his parents contacted his therapist, who alerted the police. Although law enforcement interviewed him, the officers did not remove Rodger’s guns. Similarly, Jared Lee Loughner shot and killed six people and wounded 13 others, including Representative Gabrielle Giffords, in a parking lot in Tucson in January 2011. At one point, his parents had become so concerned about his behavior that they took away his shotgun, but they could not take any further action to restrict his access to guns. Unfortunately, these situations are not uncommon. A gun violence restraining order would have provided these family members and law enforcement with a vital tool that could have saved lives.

Family and Community Members Often Notice Warning Signs Before Shootings

In many of the recent mass shootings, community members noted warning signs beforehand but there was nothing they could do to remove the shooter’s access to guns before the tragedy. A person entering a mental health crisis often exhibits signs that may alert community members to the person’s mental state. For example, 80% of people considering suicide give some sign of their intentions1and 38 out of the 62 mass shooters in the last 20 years were reported as displaying signs of dangerous mental health problems prior to the killings. In many of these shootings, people who knew the shooter observed these signs, but federal and state laws provided no clear legal process to restrict his or her access to guns, even temporarily.

Academic researchers, including prominent experts in psychiatry and the law, have found that a person who is engaging in certain kinds of behavior, such as violence or self-harm or the ongoing abuse of drugs or alcohol, is significantly more likely to commit another act of violence towards him or herself or others within the near future. This behavior should act as a “red flag” that the person might soon commit an act of violence.2 In fact, research has shown that these behaviors are a stronger predictor of future violence than mental illness.3 In December 2013, the Consortium for Risk-Based Firearms Policy, a group of the nation’s leading researchers, practitioners, and advocates in gun violence prevention and mental health, released a report endorsing the gun violence restraining order process.4

State Efforts to Restrict Gun Access by People in Crises

Prior to the Isla Vista shooting, two states, Connecticut and Indiana, enacted laws allowing law enforcement officers or certain other individuals to obtain court orders restraining dangerous individuals from purchasing or possessing firearms. Connecticut’s law, enacted in 1999, allows two law enforcement officers, or one state’s attorney, to petition a court for a firearms restraining order. Although the law was initially underutilized because of a lack of public awareness and limited law enforcement resources, use of the law increased after the Virginia Tech massacre in which a mentally ill man killed 32 people and injured 17 others.5 A recent study demonstrated that in Connecticut, for every 10.5 guns seized under the law, one suicide was prevented.6 Indiana also has a version of this law.

The gun violence prevention community in California, including the Law Center, had been discussing enacting a version of Connecticut’s and Indiana’s law for several years. The idea was to expand the scope of the law to allow family members to be allowed to seek a firearms restraining order. In fact, the group was working on a draft when the Isla Vista shooting occurred and California legislators decided to introduce a version as soon as possible. Law Center attorneys worked with those legislators to draft the Gun Violence Restraining Order (GVRO) bill which was introduced in May 28, 2014. On September 30, 2014, California became the first state in the nation to enact a GVRO law that allows family members, in addition to law enforcement, to seek a firearms restraining order. As described further below, Washington followed suit in 2016.

Summary of Federal Law

Under federal law, a person suffering from mental illness is not prohibited from purchasing and possessing a gun unless he or she has been formally, and involuntarily, committed to a mental institution, found not guilty by reason of insanity, or undergone some other formalized court proceeding regarding his or her mental illness.7 Similarly, a person who has committed a violent act towards others is not prohibited from possessing guns under federal law unless he or she is the subject of a domestic violence restraining order, has been convicted of a felony, or has been convicted of a domestic violence misdemeanor.8

Summary of State Law

Most states have laws mirroring the federal prohibitions on gun possession by seriously mentally ill individuals (For more information about these state laws, visit our Categories of Prohibited People policy page). These laws allow states to enforce prohibitions on gun possession by mentally ill individuals utilizing their own law enforcement agencies and criminal justice systems. Similar to federal law, however, these laws do not provide a process for law enforcement or family members to disarm a dangerous individual who has not been adjudicated mentally ill or committed to a mental institution.

Similarly, state domestic violence laws allow a victim to seek a court order to prevent further acts of abuse and restrict the abuser’s access to guns. These laws have been enacted in all fifty states. Research has shown the laws to be effective, and courts have upheld them against various constitutional challenges. These laws are limited, however, to preventing abuse against an identifiable person, and do not allow an individual to seek an order generally restraining a dangerous person’s access to guns. Because every state has a system for issuing domestic violence restraining and protective laws, and due process protections are built into those systems, California drew heavily from its domestic violence protective order law when enacting the GVRO law to fill in the gaps left by federal and state law.

Laws that Allow Family Members to Seek a Court Order Disarming a Dangerous Person

Only two states — California and Washington — have enacted comprehensive laws allowing law enforcement officers and family or household members to petition a court to keep guns away from a dangerous person in the throes of a crisis. Because it closely mirrors the domestic violence restraining order process, California’s law is known as a “Gun Violence Restraining Order.” Washington’s law, which was enacted via a ballot initiative supported by an overwhelming majority of voters in 2016, is also based on the state’s domestic violence protections and is known as an “Extreme Risk Protection Order (ERPO).” In both states, the person seeking the order is known as the “petitioner” and the person subject to the order is known as the “respondent.”

Who May Petition a Court for an Order

The most important aspect of the California and Washington laws is that they empower family and household members — the people most likely to notice warning signs of a person in crisis — to prevent gun tragedies before they happen. Law enforcement officers who come into contact with distraught individuals, or are repeatedly called to domestic disturbances, are also enabled to petition a court to remove a dangerous person’s guns.

Family and Household Members

In California, “immediate family members” of a person may file for a GVRO.9 The state defines immediate family members to include:10

The respondent’s spouse (by marriage or not) or domestic partner.

The respondent’s parents, children, siblings, grandparents, and grandchildren and their spouses, including any stepparent or step-grandparent.

Any other person who regularly resides in the household, or who, within the last six months, regularly resided in the household.

In Washington, family and household members may petition for an ERPO11. Family and household members are defined as any:12

Person related to the respondent by blood, marriage, or adoption.

Dating partners of the respondent.

Person who has a child in common with the respondent regardless of whether such person has been married to the respondent or has lived together with the respondent at any time.

Person who lives, or has lived, with the respondent within the past year.

Domestic partner of the respondent.

Person who has a biological or legal parent-child relationship with the respondent, including stepparents and stepchildren and grandparents and grandchildren.

Person who is acting or has acted as the respondent’s legal guardian.

In both California13 and Washington, an individual who petitions for a GVRO or ERPO knowing the information in the petition is false, or who files with intent to harass the respondent, is guilty of a misdemeanor (California) or gross misdemeanor (Washington).14

Law Enforcement Officers

In California and Washington, law enforcement officers may also petition for GVROs or ERPOs. In California, in addition to the types of orders available to all petitioners, an additional type of order is available only to law enforcement officers. Discussed in greater detail in the section below, this type of GVRO allows a law enforcement officer to request an order from a court at any time, day or night.

Types of Orders

Similar to domestic violence restraining and protection orders, GVROs and ERPOs can be issued on an emergency temporary basis or for a longer period. The way each order is obtained, and the standard a petitioner must meet to obtain an order, differ based on the type of order.

Temporary Emergency Orders

California allows a law enforcement officer orally or in writing to petition a court for a temporary emergency gun violence restraining order any time of the day or night.15 The officer must:

Memorialize the order of the court on the form approved by the state’s Judicial Council, if the order is obtained orally.

Serve the order on the restrained person, if the restrained person can reasonably be located.

File a copy of the order with the court as soon as practicable after issuance.

Have the order entered into the computer database system for protective and restraining orders maintained by the Department of Justice.16

If the court issues a temporary emergency order, the respondent will be prohibited from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, firearms or ammunition for 21 days from the date the order is issued.17

Washington does not have a version of California’s temporary emergency order for law enforcement officers.

Ex Parte Orders

Ex parte orders are orders that may be issued by a court without giving notice to the respondent. This process allows a court to quickly issue a protective order, but because the restrained individual is not given notice or an opportunity to be heard, the order may only last for a short period of time. In the case of ex parte GVROs in California, the order restrains the dangerous individual from accessing firearms or ammunition for 21 days or less.18 In Washington, an ex parte ERPO lasts for 14 days or less.19 In both cases, before the ex parte order expires, the court sets a date for a hearing at which the respondent has the opportunity to be present.20

In both California and Washington, family/household members, as well as law enforcement officers, may seek ex parte GVROs and ERPOs.21 In both states, petitioners must swear to the truth of the allegations in the petitions under penalty of perjury.22

California

When filing a petition for a GVRO, the petitioner must describe the number, types, and locations of any firearms and ammunition he or she believes the respondent presently possesses or controls.23

In determining whether grounds for an ex parte GVRO exist, the court must consider the following evidence:24

A recent25 threat of violence, or act of violence, by the respondent towards another, or him or herself.

A violation of a domestic violence emergency protective order that is in effect at the time the court is considering the petition.

A recent violation of an unexpired domestic violence protective order.

Any conviction for any crime that prohibits purchase and possession of firearms under California law. (Read more about individuals who are prohibited from purchasing or possessing firearms in California, here.)

A pattern of violent acts or threats within the past 12 months.

The court may also consider any other evidence that is indicative of an increased risk for violence, such as:26

The respondent’s unlawful and reckless use, display, or brandishing of a firearm.

The respondent’s history of use, attempted use, or threatened use of physical force against another person.

The respondent’s prior arrest for a felony offense.

The respondent’s history of a violation of a domestic violence protective order.

Police reports and conviction records of the respondent’s recent criminal offenses that involve controlled substances or alcohol, or documentary evidence of ongoing abuse of controlled substances or alcohol.

Evidence of the respondent’s recent acquisition of firearms, ammunition, or other deadly weapons.

Ex parte GVROs—and yearlong GVROs issued when the respondent was not present—must be personally served on the respondent if he or she can be reasonably located.27

Washington

As in California, when filing a petition for an ex parte ERPO, the petitioner must, among other things, identify the number, types, and locations of any firearms he or she believes to be in the respondent’s current ownership, possession, custody, or control.28

When determining whether grounds exist to issue an ex parte GVRO, a court in Washington must review relevant evidence including, but not limited to, any of the following:29

A recent act or threat of violence by the respondent against self or others.

A pattern of acts or threats of violence by the respondent within the past twelve months.

Any dangerous mental health issues of the respondent.

A violation by the respondent of a domestic violence restraining or protection order.

A previous or existing ERPO issued against the respondent, or a violation of a previous or existing ERPO issued against the respondent.

A conviction of the respondent for a domestic violence crime.

The respondent’s ownership, access to, or intent to possess firearms.

The unlawful or reckless use, display, or brandishing of a firearm by the respondent.

The respondent’s history of use, attempted use, or threatened use of physical force against another person, or the respondent’s history of stalking another person.

Any prior arrest of the respondent for a felony offense or violent crime.

Corroborated evidence of the abuse of controlled substances or alcohol by the respondent.

Evidence of recent acquisition of firearms by the respondent.

Additionally, during the ERPO hearing, the court must consider whether a mental health evaluation or chemical dependency evaluation is appropriate.30 If so, the court may order such evaluation.

If the petitioner is a law enforcement officer, he or she must make a good faith effort to provide notice of the officer’s intent to petition to a family or household member of the respondent, and to any known third party who may be at risk of violence. The notice must state whether the petitioner intends to petition the court for an ERPO or has already done so, and it must include referrals to appropriate resources, including mental health, domestic violence, and counseling resources.31

Any ERPO, including ex parte orders, must describe the process for the respondent to relinquish his or her firearms.32 The relinquishment process is described in detail below.

Yearlong Orders

After a court issues an ex parte order, in order to issue an order that is effective for one year, it must promptly hold a subsequent hearing at which the respondent has the opportunity to be heard and present evidence. Within 21 days of issuing an ex parte GVRO, a California court must hold a hearing to determine whether grounds exist to issue a yearlong GVRO.33 In Washington, the court will automatically set a hearing to determine whether to issue a yearlong ERPO within 14 days of issuing an ex parte order.34

In both states, it is also possible, however, for a petitioner to file for a yearlong order without first obtaining an ex parte order. As discussed below, generally, the process for petitioning for a yearlong order is the same as the process for petitioning for an ex parte order. The significant difference between ex parte and yearlong orders is what evidentiary burden the petitioners must meet in order to obtain the orders. This is known as the “standard of proof,” and is described in detail in the next section. The procedures for issuing yearlong GVROs and ERPOs are otherwise the same as the procedures for issuing ex parte orders.35

Standard of Proof

What standard the petitioner has to meet to justify the need for the order depends on the type of order and the length of time it restrains the respondent from possessing guns.

Temporary Emergency Orders

In California, a law enforcement officer must prove to a judge that there is “reasonable cause” to believe:

The respondent poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm.

A temporary emergency gun violence restraining order is necessary to prevent personal injury to the petitioner or another because less restrictive alternatives either have been tried and found to be ineffective, or have been determined to be inadequate or inappropriate for the circumstances.36

As mentioned above, Washington law does not provide for an order that is analogous to California’s temporary emergency gun violence restraining order.

Ex Parte Orders

California

Because an ex parte order is an emergency order that may be issued without notice to the respondent, the risk of harm must be imminent. In order to obtain an ex parte GVRO, the petition must demonstrate that:

There is a “substantial likelihood” that the respondent poses a significant danger, in the near future, of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm.

An ex parte GVRO is necessary to prevent personal injury to the respondent or another because less restrictive alternatives have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances.37

Washington

The standard of proof to obtain an ex parte ERPO is that reasonable cause exists to believe that the respondent poses a significant danger of causing personal injury to self or others in the near future by having in his or her custody or control, purchasing, possessing, or receiving a firearm.38

Yearlong Orders

Because yearlong GVROs and ERPOs dispossess respondents of firearms for a longer period of time, the burden of proving the need for the order is higher than for temporary emergency or ex parte orders.

California

To obtain a yearlong GVRO, the petitioner has the burden of proving, by “clear and convincing evidence,” that both of the following are true:39

The respondent poses a significant danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.

A GVRO is necessary to prevent personal injury to the respondent or another because less restrictive alternatives have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances.

Washington

To obtain a yearlong ERPO, the petitioner must prove by a “preponderance of the evidence” that the respondent poses a significant danger of causing personal injury to self or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm.40

Relinquishment Procedures

California

When a court issues a GVRO, the respondent must immediately relinquish all firearms and ammunition. If a law enforcement officer is serving an order that indicates that the respondent possesses any firearms or ammunition, the officer must request that he or she immediately surrender all firearms and ammunition to the control of the requesting officer.41 Alternatively, the respondent must surrender his or her guns within 24 hours of being served with the order to the local law enforcement agency.42 In lieu of transferring his or her guns to a law enforcement agency, the respondent may sell or transfer all firearms and ammunition to a licensed firearms dealer.43 The law enforcement officer or licensed firearms dealer taking possession of any firearms or ammunition must issue a receipt to the person surrendering the firearms or ammunition.44 Within 48 hours after being served with the order, the respondent must file the receipt with the court that issued the GVRO and with the law enforcement agency that served the gun violence restraining order.45

Washington

Upon issuing an ERPO, the court must order the respondent to surrender any firearms in his or her custody, control, or possession, as well as any concealed pistol license, to the local law enforcement agency.46 The law enforcement officer serving an ERPO must request that the respondent immediately relinquish all firearms and any concealed pistol license in his or her custody, control, or possession to the officer.47 The officer must also conduct any search permitted by law for such firearms and take possession of any firearms belonging to the respondent that are relinquished, in plain sight, or discovered pursuant to a lawful search.

If personal service by a law enforcement officer is not possible or required, the respondent must relinquish his or her firearms and concealed pistol license to the control of the local law enforcement agency within 48 hours of the alternative service.48 The officer must issue a receipt to the respondent and, within 72 hours of serving the order, the officer must file the receipt with the court.49

If the petitioner believes that the respondent has failed to relinquish all firearms and concealed pistol licenses in his or her custody, control, or possession, the court will determine whether to issue a search warrant describing the firearms and authorizing a search of the locations where the firearms are reasonably believed to be and the seizure of any firearms discovered pursuant to such search.50 Additionally, the court will set a hearing three days after issuing the order to determine whether the respondent has complied with the order.51

Order Renewal

In California, at any time within the three months before the expiration of a GVRO, a petitioner may request the order’s renewal.52

In Washington, 105 days before the ERPO is set to expire, the court must notify the petitioner of the impending expiration.53 A petitioner may request a renewal of the ERPO at any time thereafter before the expiration of the order.54

In both California and Washington, the procedures and standards for renewal of a GVRO or ERPO are the same as those required to obtain the yearlong order.

Order Termination

In both California and Washington, GVROs and ERPOs terminate automatically when they expire. However, respondents are also entitled to request one hearing to terminate the order while it is in effect.55

Once an order terminates, a law enforcement agency holding any firearm that has been relinquished must return the firearms to the respondent after performing a background check on the respondent to ensure he or she is currently eligible to own or possess firearms.56

Reporting of Orders to Federal Background Check System and Other Agencies

California

No later than one court day after issuing or renewing a GVRO, the court must electronically notify the Department of Justice of the order.57 Within one business day of serving the order on the respondent, a law enforcement officer must submit the proof of service directly into the California Restraining and Protective Order System.58 If the order was served by someone other than a law enforcement officer, the clerk of the court must submit the proof of service of the GVRO directly into the California Restraining and Protective Order System.59

Washington

On the day an ERPO is issued, the clerk of the court must enter it into a statewide judicial information system and forward a copy of the order to the appropriate law enforcement agency specified in the order.60 The Agency must enter the order into the National Instant Criminal Background Check System (NICS), any other federal or state computer-based systems used by law enforcement or others to identify prohibited purchasers of firearms or to list outstanding warrants.61 The agency must only expunge orders that have expired or terminated.62

Within three judicial days after a court issues an ERPO, it must forward a copy of the respondent’s driver’s license or state identification card, along with the date of order, to the appropriate licensing department in order to revoke the respondent’s concealed pistol license.63

Similar Laws Enacted in Other States

In 1999, Connecticut enacted a precursor to the GVRO/ERPO. The law allows a state’s attorney, or any two police officers, to file a complaint for seizure of a firearm or ammunition when they have probable cause to believe that:

A person poses a risk of imminent personal injury to himself, herself or others.

Probable cause may be based on evidence similar to the categories of evidence courts must review when reviewing petitions for ex parte GVROs and ERPOS. The Connecticut law also allows a court to issue a search and seizure warrant for firearms or ammunition possessed by the dangerous individual.65 The court must hold a hearing no later than 14 days after execution of the warrant to determine whether the seized firearms and ammunition should be returned to the person named in the warrant.66 If the court finds by clear and convincing evidence that the person poses a risk of imminent personal injury to himself or herself or others, it may order the state to continue to hold the firearms and ammunition for up to one year.67

Indiana also has a law similar to Connecticut’s that allows a law enforcement officer to file a sworn affidavit with a court describing the facts that have led the officer to believe an individual is dangerous and in possession of a firearm.68 A dangerous individual69 is someone who presents one, or more, of the following:

An “imminent risk” of personal injury to himself, herself or another person.

A risk of personal injury to himself, herself or another person in the future and he or she either:

Has a mental illness that may be controlled by medication, and has not demonstrated a pattern of voluntarily and consistently taking the individual’s medication while not under supervision

Is the subject of documented evidence that would give rise to a reasonable belief that he or she has a propensity for violent or emotionally unstable conduct.

The affidavit must also describe the officer’s interactions and conversations with the individual who is alleged to be dangerous or another individual, if the law enforcement officer believes that information obtained from this individual is credible and reliable.70

If the court concludes probable cause exists to believe the individual is dangerous and in possession of a firearm, the court may issue a search and seizure warrant for the individual’s firearms.71

Law enforcement officers may seize firearms from any individual whom the law enforcement officer believes to be dangerous without obtaining a warrant.72 In such an instance, the court must ultimately hold a hearing within 14 to 16 days to determine whether probable causes exists to find that the individual is dangerous and law enforcement should retain his or her firearms and concealed carry license, if applicable.73

Law enforcement will retain the individual’s firearms indefinitely unless he or she petitions the court no less than 180 days after the initial ruling and proves by a “preponderance of the evidence” that the individual is no longer dangerous.74 If the court denies return of the firearm, the petitioner must wait another 180 days before filing a subsequent petition. If at least five years have passed since a court conducted the first hearing, the court, after giving notice to the parties and conducting a hearing, may order the law enforcement agency having custody of the firearm to dispose of the firearm.75

Both the Connecticut and Indiana laws have been upheld by state courts as constitutional under the Second Amendment to the United States Constitution.76

Key Legislative Elements

The Law Center has drafted model GVRO legislation. Please contact us directly for a copy of our model law. Any GVRO legislation should include:

Immediate GVROs: The court must consider any petition for a GVRO within 24 hours and should be able to issue a GVRO immediately to prevent the harm that might result if the person continues to have access to firearms. When determining whether to issue a GVRO before notice to the person, the court must consider the risk that he or she may attempt to conceal guns that are already in his or her possession.

Hearing and Duration: A GVRO issued without a hearing should only be valid until the court can hold a hearing where the respondent has the opportunity to participate. At the hearing, the court should be able to issue a GVRO for a longer period, such as one year. The petitioner or law enforcement should be able to ask the court to renew the order.

Surrender of Guns: A person who is served with a GVRO must be required to immediately surrender all firearms in his or her possession. Law enforcement must provide the person with a receipt and take these weapons into custody for the duration of the GVRO. The law may allow the restrained person to immediately surrender all firearms and ammunition to law enforcement or sell them to a licensed dealer. In either circumstance, the restrained person must obtain a receipt, which must be filed with law enforcement and the court that issued the order.

Search Warrant: When the court issues a GVRO, it should also be able to issue a search and seizure warrant so that law enforcement officers can perform a search for any firearms that person already has. More specifically, this warrant should be available if the court finds probable cause to believe the person already has guns at the location to be searched.

Protections for Co-Habitants: The law should provide that a gun may not be seized pursuant to a warrant if the gun is owned by someone other than the person subject to the GVRO and is stored so that he or she doesn’t have access to it. Also, a gun safe owned solely by someone else may not be searched.

Notice to Law Enforcement: Law enforcement should be notified when a petition for a GVRO is filed, so that law enforcement can determine whether the dangerous person already has a gun. Law enforcement may also have other relevant evidence that can assist the court in determining whether to issue a GVRO.

Penalty for False Petitions: The law should impose a criminal penalty on any person who files a petition for a GVRO that contains statements the person knows are false.

Reporting for Background Checks: Upon issuing a GVRO, the court must ensure that records identifying the person subject to the GVRO who is restrained from having a gun are promptly submitted to the background check system. This requirement will help ensure that the person cannot purchase any new guns.

Ammunition: Each provision of the law should apply to ammunition as well as firearms.

Jeffrey W. Swanson et al., Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does it Prevent Suicides? Law and Contemporary Problems (August 24, 2016, publication forthcoming), available at SSRN: https://ssrn.com/abstract=2828847; See also Dan Friedman, Laws That Allow for Temporarily Removing Guns from High-Risk People Linked to a Reduction in Suicides, Sept. 8, 2016, available at https://www.thetrace.org/2016/09/gun-violence-restraining-order-suicide-reduction-connecticut/. ⤴︎

Cal. Pen Code § 18185; Rev. Code Wash. § 7.94.080(1). In California, the court must notify the respondent of his or her right to request a termination hearing when issuing the GVRO. Cal. Pen Code § 18180(b). ⤴︎